A hot subject in relation to marriage and the family issue in the recent two years is the revision of the Marriage Law. People from all walks of life, including experts, scholars, legal workers, urban residents, farmers and even people living in remote areas, have given their opinions on the matter. Such wide public participation in the revising of a law is unprecedented in China.
I. Background for Amending the Marriage Law
On May 1, 1950, the newly founded People's Republic of China promulgated its first Marriage Law. The enforcement of this law helped emancipate numerous Chinese people from mercenary and arranged marriages, and enabled them to marry the partners of their choice. This is called the first matrimonial revolution in Chinese history.
The Marriage Law now in force was adopted in 1980. At that time, China was in a special historical period of setting things right following the ending of the 10-year-long "cultural revolution." The legal system had to be completely reconstructed, and the legislation had to emphasize general instead of specific principles. Consequently, the existing Marriage Law contains only 37 articles, and is very simple. Nevertheless, its implementation has played a very important role in regulating family relations, stabilizing family order and consolidating the Chinese marriage and family system.
With the introduction of the reform and opening policies, and the rapid social development, great changes have taken place in the status of the family. The existing Marriage Law consequently has become over-simple and lagging behind reality. For instance, it sets no rules concerning void marriage, but actually void marriage provision is essential in the marital system. In addition, the provisions of the existing law concerning the property relations between husband and wife are too simple to be operable during judicial hearings. In order to adapt to the profound changes in society and the family, it is a must to perfect the existing marriage law and overcome the limitations of previous legislation to reflect the reality and future tendency of contemporary marriage and family relations.
II. Process of Amending the Marriage Law
In May 1996, the National People's Congress Committee for Internal and Judicial Affairs wrote to the Ministry of Civil Affairs, asking the latter to organize related departments to revise the existing Marriage Law. The Ministry of Civil Affairs set to work in June 1996, and a leading group and an office were set up in November 1996. Between November 1996 and June 1997, officials from related departments and experts and scholars went to various places for investigation and study, and finished the first draft of the new Marriage Law, called Marriage and Family Law. The opinions of various localities on the draft law were solicited, and related departments and experts and scholars were organized once more to discuss and draft the new law from June to September 1997. The draft to be submitted for review was prepared and finished between September and December 1997.
III. Focuses of Revision
According to reports carried in Chinese Society News on January 21, 1998, the Legal Daily on May 7, 1998, and the Guangming Daily on July 4, 1998, the revision of the Marriage Law pinpoints the following aspects:
1. Adding a general provision concerning the system of kinship so as to clearly define the scope and type of domestic relations and their calculation standard as well as the general validity of kinship.
2. Adding a legal way of identifying the nullity of a marriage, including the legal circumstances constituting a void marriage, the agency to identify and announce a void marriage, and the legal consequence of a marriage which has been identified as void (e.g. child care and education, disposal of property, etc.).
3. Improving the matrimonial property system. A dual system of prescribed matrimonial property regime and agreed matrimonial property regime shall be practiced, and the scope of property peculiar to either spouse shall be clearly defined.
4. Improving the legal grounds for divorce. Some experts consider that "alienation of mutual affection" stipulated in the existing Marriage Law as a criterion for a divorce should be changed to "breakdown of marital relations. This is because alienation of mutual affection reflects only the subjective factors in a divorce, while the objective reasons are not included. It is therefore not operable in judicial practice. When the breakdown of marital relations is used as a criterion, it can fully reflect the objective ground that the husband and wife are indeed unable to live together.
5. Adding a legal provision concerning parental power. Parental power refers to parents' rights of control, education, personal protection and property administration over their under-age children. Some people advocate its integration with the following clause concerning guardianship, and others consider that parents' excessive control over their children should be weakened to facilitate the fostering of the next generation's independence.
6. Adding a system of guardianship. At present, legal disputes often arise because one party to a divorce rejects visits by the other party to their child. The existing Marriage Law has no specific provisions on the issue that one divorced party who has no guardianship over children should have visitation rights and on how to guarantee the realization of such visitation rights. Some people, after divorce, regard their children as their private property and do not allow visits by the other party, as a means of retaliation. The courts often have difficulties in dealing with such law suits.
7. Establishing an integrated and unified system of support.
8. Adding legal provisions applicable to marital and family relations involving foreigners and inter-regional marital and family relations.
9. Adding standard childbirth provisions.
IV. Points at Issue
There are different opinions concerning the provisions of some articles during the process of revising the marriage law. They pinpoint two issues: restrictions on divorce and the handling of extramarital affairs.
To summarize, there are mainly three types of opinions. First, it is held that the law should not interfere in a citizen's private life, for instance, in divorce and extramarital affairs. So doing is to interfere in the freedom of a citizen's life, which goes against current international trends, and is a kind of retrogression. People sharing this opinion hold that a citizen should be punished for his or her life-style-related criminal offences according to the criminal law, not the marriage law. Second, it is held that from the angle of safeguarding social stability and protecting the interests of an aggrieved party, the marriage law should advocate traditional Chinese domestic virtues and curb some types of immoral behavior, for instance, punishing those who have extramarital affairs and setting restrictions on divorce. Third, it is held that the general principle for revising the Marriage Law should be guaranteeing no restrictions on freedom in everyday life, which is an international tendency, and that the law should not interfere in what belongs to the category of morals. Nevertheless, while an ideal is advocated, the law should take into account social reality, in which feudal practices still abound and there is a large poor-educated population. As a result, it will probably take a long time to perfect the marriage law. Recent years have witnessed a drastic rise in murder cases and disputes arising from extramarital affairs. To eradicate such a tendency, it is important for the new law to intervene in socially repugnant conduct such as bigamy, concubinage, and adultery.
It is a good phenomenon to have such a debate centering on the revision of the Marriage Law. In the past, a law's legislation and amendment seemed only to be the business of the government; the public was never seen to participate in it on a wide scale. Today, the public is showing wide concern over the revision of the marriage law and has actively voiced opinions and suggestions. This indicates that there is an improved democratic atmosphere in Chinese social life. Secondly, the public's broad participation has also showed that in people's minds the Marriage Law is more closely associated with real life than before, and they have learned to use the law as a tool to safeguard their beliefs and conduct. Thirdly, people always list as many reasons as possible to invalidate others' arguments. This has helped experts who are responsible for the reformulation of the marriage law to deepen their understanding of some issues, so that some provisions of the new law will have wider coverage and become more practical. Fourthly, open discussion helps to promote the public's awareness of some new concepts as well as of the new marriage law.
1. A draft should be issued for discussion by the public as well as experts, scholars and legal workers. After the intention to revise the Marriage Law was made known to the public, the Chinese Women's Daily responded immediately, and organized many workshops in this regard. Following that, other news media reported the news or ran related workshops themselves.
2. Attention should be paid to the practicality and effectiveness of the new marriage law. The marriage law is a specifically oriented law for use in settling marital cases. If its clauses and provisions are unclear in concept or are obviously not operable, this will not only intensify the difficulty on the part of legal workers but also damage the effectiveness of the law. While efficiency is stressed in economic activities, consideration must also be given to the effectiveness of a law when it is formulated.
3. As the newly revised marriage law is a law geared to the new century and will be in effect for a long period of time, during which many social changes are expected, it should be forward-looking and should not be promulgated before the time is ripe.